The Jurisdiction of the States over their
Navigable Waters.

AKGUMENT

OF

Eoscoe Cockling,

IN THE

TROY AND WEST TROY
BRIDGE CASE,

IN THE CIRCUIT COURT OF THE UNITED STATES,

At Utica, August 6, 1873,

BEFORE

3VER. JUSTICE HUNT,

IN OPPOSITION TO A MOTION FOR AN INJUNCTION TO RESTRAIN THE
ERECTION OF A BRIDGE OYER THE HUDSON RIVER.

UTICA, N„ Y-

KOBERTS & CO., BOOK AND JOB PRINTERS, 60 GENESEE STREET.

1873.

THE JURISDICTION OF THE STATES OVER
THEIR NAVIGABLE WATERS.

ARGUMENT

OF

EOSCOE OONKLING,

IN THE

TROY AND WEST TROY

BRIDGE CASE,

IN THE CIRCUIT COURT OF THE UNITED STATES,
At Utica, August 6, 1873,

BEFORE

MR. JUSTICE HUNT,

IN OPPOSITION TO A MOTION FOR AN INJUNCTION TO RESTRAIN THE
ERECTION OF A BRIDGE OVER THE HUDSON RIVER.

UTICA, N. Y.

ROBERTS & CO., BOOK AND JOB PRINTERS, 60 GENESEE STREET.
1873.

ARGUMENT OF ROSCOE CONKLING

For the Defendants.

CIECUIT COUET OP THE UNITED STATES.

IN EQUITY.

Charles A. Silliman,

agst

Troy and West Troy Bridge Com-
pany, el al

The Hudson Eiver at the point in question, is six hundred
and seventy-two feet wide, and the tide of the ocean one hund-
red and fifty miles away, causes it to rise and fall two feet.
Troy with 50,000 and West Troy with 20,000 inhabitants, come
to the water's edge on opposite banks. The neighboring com-
munities needing a crossing between these places, as their cen-
sus appears from the moving papers, number 122,000 people.
The necessity shown by the defendants is even more widespread.
The stream is too deep to ford, and there is no mode of passing
it except a perilous track on an out-of-the-way railroad bridge,
a almost continually," thronged by locomotives and trains, and
a precarious and unsafe single boat ferry plying a portion of the
year, together with a small tug for foot passengers higher up.

About a mile and a quarter above the site of the bridge in
controversy, the Hudson has long been dammed. At this point,
a lock admits small vessels, which are twenty-two minutes each
in passing the lock. From Troy to Albany, the Erie Canal runs
parallel to the river. Below the dam, and about three-quarters
of a mile above the disputed erection, the river has for thirty
years been spanned by a railroad bridge, but twenty-five feet
above the water, with but a single draw of fifty feet. Six miles
below Troy, the river has been bridged for eight years, and two
years ago it was bridged a second time. These two bridges are

thirty feet high — the upper one with two draws of one hundred
and eleven, and the lower one with two draws of one hundred
and seventeen feet each.

The Hudson rises in the State of New York, and flows
wholly in that State, till it washes New Jersey just before
reaching the sea. All these bridges were built by authority of
New York, all were the subject of thorough legislative and
judicial scrutiny, and, though devoted to railways, all are great
and acknowledged public improvements, and harmless to navi-
gation.

On the 23d of April, 1872, the State, refusing a charter to
the ferry -partner of the complainant, for a bridge bat twenty feet
high, which an attempt was made to obtain for a site one block
below, authorized an intermediate drawbridge — not a railway
bridge, but a public bridge — at Congress Street, Troy. This
site, is lower down than the dam and upper bridge, and higher
up than the two lower bridges. The foot of Congress Street
was fixed as the site by the statute, (section 1 ;) the dimensions
of passage ways for vessels were also prescribed ; immediate
effect was given to the statute, urgent diligence was enjoined in
prosecuting the work, and the bridge was required to be ready
for use within two years. (See Bill, p. 8.)

Observing the times fixed by the statute for successive steps,
those charged with the erection proceeded vigorously and openly.
Troy ceded Congress Street for the purpose, and West Troy,
Genesee Street, the corresponding street across the river. Books
were opened, public notices given as required by the statute, di-
rectors and officers chosen, stock subscribed, surveys and plans
made, legal proceedings to acquire property taken, and by Sep-
tember 18th, 1872, the contracts were executed for the masonry
and iron, which, by law, must constitute the bridge.

The western abutment, and western land pier, have been
completed. The piles foundation for the western rest pier, have
been driven, and a caison placed there, in which mason- work is
progressing. The foundations of the turn-table pier, are partly
constructed. A coffer-dam for the eastern pier, is far advanced.
Excavations for the remaining pier, have been made. A costly
culvert, two hundred and thirty feet long, has been nearly com-
pleted. The iron superstructure, is done, and parts of it, are
already on the piers. Large quantities of material have been

purchased, some of which is in transit, and some already deliv-
ered ; and one hundred and fifty men are engaged in the erection.
$150,402.03 has been actually expended, and the work success-
fully and constantly proceeds.

The bridge is to be two feet higher than the statute requires,
two feet higher than the bridges below, and seven feet higher
than the railroad bridge above ; the draws are eleven feet wider
than the statute requires, and the spans much wider than those
above or below, and much wider than the statute exacts. The
aggregate space in the river occupied by all the piers, is to be
forty-two feet in width, leaving six hundred and thirty feet, or
thirty-eight rods, of clear water way, with draws equal to those
of the upper Albany bridge, and every other space for vessels,
greater, both in elevation and span.

Months after the statutory days on which proceeding after
proceeding took place, by which rights became vested ; months
after the organization of the Bridge Company, after its stock
was subscribed, and its surveys and plans were completed, weeks
after the contracts for the bridge were finally concluded, and
twelve days after the coffer-dam for the eastern pier had assumed
its position, the complainant filed his bill. This was on the
16th of October, 1872. The defendants answered on the 2d
of January, 1873, denying all the equities of the bill , and from
that time till the 3d of July, 1873, the complainant lay on his
oars. The statute required the work to go on, and it did go on
in open view, the State on the 22d of April, 1873, re-enforcing
it by an act of the Legislature authorizing an increase of stock
or an issue of bonds. Three days after the bill was filed the
complainant was served with legal notice that immediate and
important steps in the enterprise, were about to be tak®|^jit
for eight months he remained mute. In the fifteenth month of
the work, to which the law gave but twenty-four months, and
the elements not so long, and which is to be done in fact Janu-
ary 1, 1874, the complainant started up and asked an injunction
" pending this suit." With a statute before him, which he had
sought to defeat in the Legislature by a rival charter, forecasting
the bridge from step to step, in time, place, form, material, loca-
tion of piers, and dimensions — with expensive proceedings and
costly operations constantly going on, of which ignorance can
not be pretended — with no freshly acquired right, or newly dis-

covered ground of complaint, the complainant stood quietly by
six months before the formal act of filing his bill, and eight
months afterwards; and this, when the statute left nothing to
uncertainty, and tolerated no pause or delay in building the
bridge, unless compelled by a mandate of the Court.

Now, when great sums have been expended, and large en-
gagements made, when costly structures are more than half
completed, and the next four months must put them in condition
to weather the elements, or leave them exposed to destruction,
the complainant wakes up his dormant suit, and giving no ex-
cuse for his delay, he asks a court of equity to drive the defend-
ants from their work, and to leave it to the freshets and the
frosts. As if to add wantonness to the proceeding, the motion
is made on affidavits sworn to last year, or in the very beginning
of this. Even the formal affidavit of Mr. McOlellan, the solic-
itor, was sworn to March 11, 1873.

Such an exertion of power must of course proceed, if at all,
on the grounds, 1st, that the comrJlainant has a clear right ;
2d, that he has no remedy at law for any inj ury he may suffer ;
3d, that he has pursued the remedy asked, promptly and dili-
gently ; 4th, that between now and the first of January, irrepar-
able injury will be inflicted on the complainant by the comple-
tion of the bridge, or else that the interest of the defendants
will be conserved by preventing their making further expendi-
tures ; 5th, that the bridge will be a nuisance, and will, in legal
sense, interrupt the free navigation of the Hudson; 6th, that
offense has been done, or is threatened, by the State of New
York to the Constitution or Laws of the United States, and that
this Court has jurisdiction in the premises, at the suit of a part
owner of a barge and canal boat, licensed, for one year, and no
more, in the coasting trade.

These positions must all be maintained, before the Court will
exert one of its most summary and exalted powers.

This outline of the case assumes that some intendments of
the bill, and some statements of the moving papers, are foreign
to the case, and that some incidental matters are settled, past
dispute, by uniform decisions.

1. A complainant has been selected, who could formally
aver that he is a citizen of New Jersey. This fact gives him
no right bevond entrance to the Court.

For all purposes, except to gain a hearing from this particular
tribunal, he might as well have averred that his name is Silli-
man, and that the family appeared as complainant and affiants
in the Albany Bridge case also. Membership of the Silliman
family, quite as much as citizenship of New Jersey, constitutes
a right to guard the navigation of the Hudson Eiver, and to
challenge the police power and jurisdiction of the State of
New York.

The complainant may obtain his footing in Court by reason
of his personal right as citizen of another State, and then the
case instantly assumes all the bearings it would have in a State
Court. His extra — State residence, gives him only a choice of
forum, and having made his choice, he is at once on an equality
in all things else, with any other suitor.

If the statute of New York assailed in the bill, would with-
stand a citizen of New York, or if it wo aid withstand the com-
plainant in a State Court, it will prevail here by exactly the
same right.

(Passaic Bridge cases, and numerous cases to be cited presently.)

2. The fact that an arsenal of the United States, stands on
the Hudson, is wholly immaterial : and so is the allegation that
Congress has at times appropriated money to improve the river.
The arsenal is below the site of the bridge in question, and there-
fore, as matter of fact, no interest of the United States in that re-
gard is involved.

The averment is introduced, however, to piece out the argu-
ment, that the commercial clause of the Constitution has, as to
this river, and this suit, been vitalized by legislation under it.

The answer to this is, that appropriations by Congress for im-
provements of rivers and harbors, are made never under the
power to regulate commerce, but always under the power to ap-
propriate money for the common defense and general welfare.

If the commercial clause of the Constitution, for the purpose
of the complainant, needs galvanizing by legislation under it,
appropriations of this kind will not do.

3. Troy is alleged to be a port of delivery. This has no
bearing on the case. The complainant must stand on his right
to navigate the Hudson, and must show damage to that right.

His coasting license is founded solely on an act of Congress
approved February 18, 1793. If any act makes Troy a port of

delivery, it is quite modern, and has no relation to the complain-
ant, and his right to this suit is not affected by it.

Passaic Bridge cases, 3 Wall, 782, (see pp. 791, 793.) Wheeling
Bridge case, 13 How., 586 per ch. J. Taney. Gillman vs. Philadel-
phia, 3 Wall, 713.

4. The moving affidavits dwell on "tows," and abound in
fears that " tows" may be troubled in passing the spans and draws.

"Tows" are not coasting vessels, or registered vessels, or
vessels of the United States. A " tow," even made up wholly
of licensed vessels, would not be a licensed craft, any more than
a raft would be.

The little annual certificate, fixed in its every word by the
act of 1793, commonly called a coasting license, has sometimes
been invested by ingenuity and eloquence with marvelous and
awful attributes, but it has never been stretched to cover levia-
thans made up of a crowd of boats, strung on hawsers, and
spread out in tiers. Beside, the complainant does not " tow,"
he is not a tug owner towing boats, or running to and fro at
Troy as a lighter or shifter of vessels from berth to berth, or
wharf to wharf: he tells us that his barge and his canal boat
have "for a long time been regularly employed in carrying on
the coasting trade between the port of Troy and ports in vari-
ous other States;" and the canal boat between Buffalo and
New York. He therefore, cannot uphold his suit in the inter-
est of "tows."

Again, the moving affidavits insist that the erection of the
Albany bridges has dismembered Troy's "tows." These broad
flotillas now go piece-meal to a point below the Albany bridges,
and in so doing pass through spaces smaller than those of
the proposed bridge.

5. The allegation that inconvenience may happen to passen-
ger boats, in which the complainant has no interest, is wholly
beside the issue before the Court. The complainant must stand
on his own feet ; he cannot maintain his suit upon the rights
of those for whom he cannot speak, and whose voice is in truth
against him.

What has the tonage of Troy to do with this motion ? Does
Troy, or do the owners of her tonage, complain ?

The "ferry interest," a half dozen strong, alone complains. Being
a creature of the State, the "ferry interest" could hardly, in its

9

own name, deny the same State authority by which it lives:-
this would be like a tenant denying his landlord's title — so the
" ferry interest " complains and swears at progress, through its-
individual members. The parade of tonage, plays an instructive
part in the case, however — it characterizes the bill and affidavits,-
and reveals their spirit.

Eead the statement of Eobert P. Silliman, and then read the
affidavit of Eobert Eobinson, and of Eichard Vandercar, and of
Alfred Mosher. Two of these affiants represent a large part of
the whole transportation interest at Troy. Eead also the affida-
vit of the twelve dock owners. If these passages prove any-
thing, they prove an arrant attempt to exaggerate and fabricate*
pretenses of complaint.

No supposed injury to riparian owners, or municipalities, or
even to navigators, other than the complainant, can uphold the"
bill. It must rest on the right of the complainant alone ; and
facts touching others, can be pertinent only so far as they bear
upon the allegation that the bridge is a nuisance, and that he
will be prevented from freely navigating the Hudson with his-
two boats.

Wheeling Bridge case, 13 How., 566. Ibid, 589, per Ch. J. Taney.
6 Johns., Ch. Kep., 439. 12 Peters, 98.

The right of the complainant to navigate the Hudson, is the
only thing this motion protects, though the author of the bill*
seems to have supposed that the canals of New York, as well as-
the Hudson river, belong either to the General Government, or to
the Circuit Court of the United States.

6. Much effort has been given to disproving the necessity for
the bridge. The bill and moving affidavits are a traveler's guide,,
telling how to get into Troy, and how to get out again, and how
other places may be reached from Troy, mostly by ferry, and all
without the bridge. The census and the map, unaided by the
answer and affidavits of the defendants, show the urgent need
of a bridge ; but how can the Court deal with the fact, be it one
way or the other ?

If New York has not the power to authorize the bridge, the-
necessity for it, cannot legalize it. If New York has the power
to authorize it, it is lawful, whether the need of it be imperative,
or slight, or imaginary. If the bridge invades the Constitution
or laws of the United States, the Court cannot indulge the inva-

10

sion because of its convenience. If the bridge is protected by
the shield of New York, the Court cannot molest it, though it
-should stand forever an unvisited and costly monument of folly.

Whether New York has power to build a bridge on her own
soil, may be a judicial question for the Courts of the United
States ; but whether she shall or shall not exercise her power, is
a question for New York alone. The wisdom or the folly, the
need or the uselessness, of any work which a State has the power
to construct, is not a judicial, but a political question — it belongs
not to Courts, but to the Legislature, and the statute being enac-
ted, until it is repealed, there is no forum in which it can be over-
ruled or gainsayed.

Stripped of its wrappings, and relieved of the delay of the
complainant, the case can present but two questions touching
the validity of the charter — First, has New York power to
bridge the Hudson at Troy? — and Second, is the particular
bridge projected, such an one as will, in the sense of the law,
violate rights which the complainant holds under the Con-
stitution or laws of the United States ?

7. The State of New York is the party complained of, and
the only one. The bill alleges that the defendants are proceeding
according to the charter, and therefore, though the State employs
-a corporation as its agent, the act of building the bridge, is the
act of the State itself, as much as if its own engineer and
officials placed the stones and drove the bolts.

Beekman vs. the Saratoga E. R. Co., 3 Paige, 45. Bloget vs. Mohawk
and Hudson Co., 18 Wend., 1.

These views will be supported by authorities upon which the
defendants maintain three positions :

First, that in any aspect of the case, the order now asked for,
does not fall, nor does the final decree prayed for, fall within the
jurisdiction of the Court.

Second, that if the Court reaches and entertains the enquiry
whether in truth the bridge will infringe the right of the com-
plainant to the free navigation of the Hudson, then the case
of the complainant fails in law, and is disproved in fact.

Third, that any right the complainant may have had, to a pro-
visional injunction, has been lost, and the defendants will be left
to abide the responsibility of their acts when the consequences
have been demonstrated by experience.

11

FIRST.

The Hudson Eiver, with its bed and its banks, is part of
the State of New York. Congress, in the words of the Constitu-
tion, has "power to regulate commerce with foreign nations, and
among the several States." Therefore Congress may regulate
commerce on the Hudson Eiver ; but neither more or less than it
may regulate commerce in every part of every one of the
United States. Commerce, has been held to include navigation,
and so the right to traverse navigable streams with vessels, must
be deemed among the things within the protection and regula-
ting power of Congress. Eesting upon this ground, are several
statutes, all the attributes of which material to the present case,
are found in the " act for enrolling and licensing ships or vessels
to be employed in the coasting trade or fisheries, and for regu-
lating the same. Approved Feb. 18, 1793. (Statutes at Large,
305.)

These enactments do not confer primacy or supremacy ; they
do not endow those to whom they apply with the freedom of
corsairs ; they do not make the holder of a coasting license a
chartered libertine, and arm him with authority to go anywhere
at any time ; nor do they create any exceptional rights of navi-
gation.

They do, however, secure the franchise to pass over the nav-
igable waters of a State, as freely as its own citizens may pass.
Neither the Constitution, nor any act of Congress, ousts the
States of custody of their streams, nor of police or municipal
powers over them ; but on the contrary, one of the things re-
served to the States in undiminished fullness and vigor, is all
their original jurisdiction over wharves, docks, turnpikes, ferries,
bridges, and over all other matters of police.

Whether under the proffered or potential jurisdiction deriv-
able from the Constitution, Congress might have gone farther,
or might now go farther, and discipline the States, is not perti-
nent to this enquiry.

Under the National legislation as it stands, the police power
of the States over streams within their own borders, has never

12

been successfully challenged, but the Supreme Court has inva-
riably recognized and bowed to it. Thus, innumerable naviga-
ble streams have been bridged, and even dammed — always, when
within a State, by the authority of that State : thus, have inspec-
tion laws, and health laws, quarantine laws and pilot laws, been
imposed by States — laws, which pushing their powers out to the
mouths of the greatest harbors, even to the ostia regni, lay hold
of coasting vessels and foreign vessels, and their crews and car-
goes, govern their speed/ impose pilots and signals upon them,
and detain them for days and weeks, when and where they list.
Such visitations and delays, being in good faith, and impartial
to all, consist, Vattell and Kent tell us, throughout Christendom
with "free navigation" as Christendom understands it; and the
Supreme Court has always declared, that the States may pre-
scribe and enforce them without offense to the Constitution or
laws of Congress.

Instances of the exact exertion of power by States here com-
plained of, have become too numerous to count; the most
stubborn and effective opposition to it, which money and
learning could command, has often been brought into the
field, but never with success. If one case can be found in
which the right of a State to place a draw-bridge over its river
has been ultimately denied, the counsel know it and can pro-
duce it. No such case is known to me.

The defendants deny the jurisdiction of the Court to grant
this motion, and deny that the statute of New York violates
the Constitution of the United States or any act of Congress ;
and they insist that, assuming the truth of every averment in
the bill, the suit cannot be maintained.

1. The judiciary act declares, "That suits in equity shall
not be sustained in either of the courts of the United States in
any case where plain, adequate, and complete remedy may be
had at law." (1 U. S. stats. 82.)

Why, has not the complainant, by his own showing, a remedy
at law, plain, adequate, and complete ?

If the bridge is unlawful, and his barge, canal boat, or cargo
is detained, injured, or destroyed, why can he not prove and re-
cover his entire loss ?

In the Wheeling Bridge case, Pennsylvania sued in virtue of
her artificial and improved channels of communication ; her

13

averment was that the bridge would injure and check the growth
of her business, and hinder the increase of her tolls. There, was
an instance of damage too yague, wide spread, and intangible, to
be proved or computed at law. But here is nothing which can-
not be weighed in golden scales.

Albany Bdge. case, 4 Blatch. 395, (opinion of Mr. Justice Hall.) New
Jersey cases, 3 Wall., 783, 13 How., 590.

2. In all the cases known to the counsel for the defendant,
the jurisdiction of the Circuit Court in such a case has been
ultimately abandoned or denied, for still broader reasons.

Tn the Albany Bridge case, the jurisdictional point seems not
to have been presented on the motion for a provisional injunction,
which was asked for and allowed at chambers before the work
was commenced. At the final hearing two justices sat, and there
was a certificate of. division. The first question on which the
judges divided, was whether the Court had power to restrain the
erection of the bridge in case it clearly appeared that the licensed
vessels of the complainant would be materially hindered while
engaged in commerce between the State of New York and
other States. (1 Black., 582.)

On this question the Supreme Court stood equally divided,
and the Circuit Court dismissed the bill. The complainant ap-
pealed to the Supreme Court, and the Court again dividing, the
decree of dismissal was affirmed. (2 Wall., 403.)

It may be remarked in passing that a deeree, though it result
from division of the Court, is nevertheless authoritative as a pre-
cedent. (8 Wallace, 721.) This point will be referred to hereafter.

This ended the case, and the bridge was built, and a second
bridge, and they stand undisputed monuments not only of the
right of New York to bridge the Hudson, and of the harmless-
ness of the bridge in controversy, but of the want of jurisdic-
tion in this Court in the pending case.

Mr. Justice Nelson gave no opinion on the final hearing, but
Mr. Justice Hall examined, and denied the power of the Court in
a strong review. This case is referred to here, for its special and
literal application to the question of jurisdiction as distinguished
from the general law of the case, and will be cited again with
other cases, involving the same principle, which have received
the assent of many courts, and the disapproval of none.

14

SECOND.

Passing from the jurisdiction of the Court, as separated
from the merits of the case, to the general questions of law
raised by the pleadings, the right of the State to erect and
maintain the bridge in question, is believed to be indisputable
upon principles established by uniform and abundant judicial
authority.

Gibbons v. Ogden, 9 Wheat., 1 ; (Decided February, 1824;) (See pp. 9,
18, 19, 20, 113, 114, 118, and opinion Marshall, Ch. J., 203, 205.) Wil-
son v. Blackbird Creek Co., 2 Peters, 245 ; (Decided January, 1829.)
People v. R. & S. R. R. Co., 15 Wend., 113 ; (Decided by Supreme
Court New York, January, 1836.) (See opinion Savage, Ch. J., 132
to 135.) Palmer v. Comrs. Cayuhoga Co., 3 McLean, 226 ; (Decided
by McLean, J., in Cir. Ct., July, 1843.) (See p. 227.) Cooley v. Port
Wardens, 12 How., 299. (See 318 et. sec;) (Decided Sup. Ct. U. S.,
Dec, 1851.) U. S. v. R. R. Bridge Co., 6 McLean, 517. (See 523, 524 ;)
(Decided by McLean, J., in Cir. Ct., July, 1855, three years after the
Wheeling B. case.) Passaic Bridge Cases, 3 Wall., 782. (See 789 to
the end ;) (Decided by Grier, J., in Cir. Ct., Sep. 22, 1857.) Silliman
v. Hudson R. Bridge Co., 4 Blatch., 395. (Op. of Hall, J., Oct., 1859.)
Same case. 1 Black., 582. (U. S. Sup. Ct., Dec, 1861, on writ of
error.) Same case, 2 Wallace, 403. (U. S. Sup. Ct., Dec, 1864, on
appeal.) {Memo, Judge Nelson's views on motion for preliminary
injunction are found, 4 Blatchford, 74.) Oilman v. Philadelphia, 3
Wallace, 713. (Decided U. S. Sup. Ct., Dec, 1865.) See pp. 720, 722,
725, 729, 730. Crandall v. Nevada, 6 Wallace, 35. (See p. 42.)
(Decided U. S. Sup. Ct., Dec, 1867.)

1. It must be admitted that before the adoption of the Con-
stitution of the United States, the States had power to bridge
their streams.

The sole ground on which their power in this regard is chal-
lenged now, is found in these words of the Constitution: "Con-
gress shall have power to regulate commerce with foreign nations
and among the several States."

Treating this language simply as a warrant to Congress to
exercise dominion over commerce, no scope to be ascribed to it,
however great, can, without the aid of legislation, maintain the
present suit.

Admit that Congress may do anything and everything affect-
ing commerce, however remotely, and still the argument of the

15

complainant is not advanced a step. Why ? Because, granting
that Congress is omnipotent to do, we at once encounter the
question what has Congress done, and on this the whole matter
hinges.

If nothing has been done by Congress, the power to do is
dormant, and, until it is exerted, it is as if it were not.

Concede that Congress may forbid bridges over the Hudson,
or may prescribe their sites, elevations, and dimensions, the
answer is that none of these things have been done, and there-
fore the ground on which such acts might rest, be it slippery or
safe, is not in the question. What has in fact been done by
Congress, and what legally results from it, will be considered
hereafter.

But it has been contended that the commercial clause of the
Constitution is more than a warrant to Congress — more than a
power vitalized only by legislation ; the idea seems to be that
instead of being a delegation of authority and discretion to Con-
gress, the language is itself a code of regulations — a self-speak-
ing, self-acting, self-adjusting, self-executing system, which, if it
does not provide for every case, at least serves the purpose of a
dog in the manger to keep off the States.

This view is latterly repudiated by the courts in all recent
cases, if not indeed in all cases.

The decisions already cited, hold that the field of legislation
touching commerce, is open to the States, except where Con-
gress has occupied it ; that courts are empowered to execute the
commercial clause of the Constitution only so far as Congress has
embodied it in statutes ; and that the States retain the power to
enact all local and municipal laws on the subject, which do not
come into collision with the National statutes. The established
doctrine is, that general regulations, in their nature and object
universal and uniform, pertain to Congress ; and that provisions
adapted to local considerations, fall within the jurisdiction of the
States, and are not affected by the unexecuted powers which
slumber in the Constitution of the United States.

1 Hill, 469 ; 3 Gray, 268 ; 18 How., 71 ; 1 Woodb. and Minot, 401 ; 2
Gray, 339 ; 11 Peters, 102 ; 5 How., 504.

2. The only act of Congress with which the bridge charter

can conflict, is the act under which the complainant licensed

his boats in the coasting trade.

16

I omit to mention of acts establishing ports, and the like, which
~4;reat the Hudson as a navigable stream, because without these
acts the Court will take notice of the character of the river, and
that the complainant's license gives him the right to navigate its
waters.

The form of the license, is set down in the statute ; these are
the operative words : " license is hereby given to the canal boat
called the Amelia to be engaged in carrying on the coasting
trade for one year from date hereof, and no longer." (1 Stat. 307.)

It is insisted that this license gives the holder the right of free
navigation on the Hudson, and we admit it.

We admit that each year for which the complainant obtains
such a license, he may, within the district which the license
.covers, avail himself as freely as any other citizen, of all the
facilities of navigation as he finds them, on the navigable waters
of America.

But we deny that a coasting license, or the statute under
which it issues, or the Constitution from which both proceed,
has the effect to work a forfeiture of the domain of New York
in the Hudson Eiver.

We deny that a coasting license is an order that everything
but the coasting trade shall halt.

We deny that the act of 1793 is an incumbus, smothering
progress, dooming improvements, paralyzing the faculties of the
States, and petrifying the physical features of the land.

We say that "free navigation," does not mean perpetual
sameness in land, water or structures, but only means the free
use of things as they are, by nature and by law. We say
that the right to freely navigate a stream, in no sense implies
that the stream is to be kept forever unchanged, except by
aature. But who shall sanction changes ? The General Govern-
ment, in respect of structures purely local in their uses, is as
powerless as the complainant thinks the State. Is the State
also powerless ?

By what right does New York dredge, and dyke, and dock
the Hudson ? These things are called improvements, but if the
river must not be changed or meddled with by the State, meas-
ures to improve it are unlawful intrusions. This is inevitable,
unless it shall be argued that whenever the State orders a work
on the Hudson, and a Jerseyman can be hunted up to complain,

17

the Circuit Court of the United States may consider it, and if
the Court thinks well of the project it may proceed as a lawful
improvement, and if the Court thinks otherwise it must be ar-
rested as piracy on the Constitution. A trespasser cannot de-
fend his trespass by showing that by removing the soil or struc-
ture of his neighbor, he was, in his j udgment, improving his
neighbor's close.

By what right does the State of New York appropriate the
head waters of the Hudson to feed her canals ? Surely this is
an impairment of the physical facilities and medium of navi-
gation, and a clear trespass upon every holder of a coasting
license, if the theory of the complainant be sound.

By what right has the State dam across the Hudson at Troy
stood so long ?

The erection of a draw-bridge is not an act of sovereignty,
sui generis, far from it. The power exerted, is the same by which
a State charters a water works company to supply a city by
diverting water from a navigable stream. Every act which
lessens the capacity of the Hudson, or increases the inconvenience
of navigating it, is an exertion of the whole power in question
here. Were the State to cause the forests which skirt the
sources of the river, to be cut down, many of its springs would
be dried up, and even this would obstruct "free navigation " in
the sense in which the term seems sometimes to be employed.

In such a case it would hardly be contended, however, that a
collision had occurred between the State statute and the' coast-
ing act.

3. Thus we are brought to the root of the question. Does
the charter for a draw-bridge at Troy, in a legal sense, violate the
coasting license of the complainant ?

The bridge is for general use and traffic. The roads in which
it will be a link, are, like the river, common highways. This
fact distinguishes the case in two respects from the case of the
Albany Bridge. In the first place, the controversy is not be-
tween railroad and river traffic, it is a conflict of common ways,
each open to the whole public. The practical enquiry, is
whether the public may go east and west by land, as well as
north and south by water.

In the next place, the draw of the bridge, will be at all times
instantly subject and obedient to the signals of vessels. In the

18

Albany Bridge case, it was said with great truth, that trains
of cars not only occupy the draws of railroad bridges much of
the time, but that passing at appointed hours, and running by
time tables, they virtually hold command of the bridge and
monopolize it, casting upon vessels the whole burden of delay.
The utmost delay in opening the draw here will be while
vehicles happening at the instant to be on it, are moving some
part of 222 feet — a mere momentary detention.

Such being the superiority of the proposed bridge over the
bridge above it, and over the two bridges below it, can it in law
arrest or destroy " free navigation ?"

"What is free navigation — even in its physical meaning, what
is it ?

Is navigation "free" on the Ohio? The Supreme Court says it
is, and yet near Wheeling, vessels must abandon the wonted im-
memorial channel, and seek a circuitous route through a draw-
bridge.

Is navigation " free " on the Passaic, on the Schuylkill, at Chi-
cago, at Cleveland, on the Mississippi, on the Missouri, on the
Niagara, on the Charles, on the Taunton ? The Court says nav-
igation is " free " on all these rivers, yet all are bridged by
authority of States, and with bridges all too low for masts and
spars, and some of them without even a draw.

The Ehine runs through seven sovereignties in the heart of
Europe, as the map of Europe was, before its lines were trampled
the other day by the horses of Germany. In 1865 the treaty of
Paris made its navigation "free." Humboldt held the pen, and
in the final act of the Congress of Vienna, the navigation of this
and other rivers was declared "entirely free."

Bridges were not named, but bridges then studded these
streams ; time has multiplied them, and many of them can be
passed only by means of draws ; yet the treaty-making powers
all agree that bridges do not violate the treaty, because in legal
sense they do not affect " freedom of navigation."

Vattell gives us the reason. He says, " the right necessarily
supposes that the river shall remain free and navigable and there-
fore excludes every work which will entirely interrupt its navi-
gation."

The treaty of Washington has just made the navigation of the
St. Lawrence "free ;" here are the words: "the navigation of the

19

St. Lawrence shall forever remain free and open for the purposes
of commerce to the citizens of the United States, etc." Is this
treaty an empty voice, or must Canada prostrate the Victoria
bridge, and never build another on any site?

Ascending the St. Lawrence, a large part of the distance is to
be traversed by locks — is this free navigation ?

Engineers insist that from New Baltimore to Albany, the Hud-
son should be turned into a canal. Should this be deemed neces-
sary or expedient in future, will free navigation die?

Is there something attaching to the Hudson at Troy, which
singles it out among rivers, and makes the question of bridging
it exceptional ? The defendants think there is.

The decree of the Supreme Court has adjudged that the State
may bridge it, but so the Court has decreed of other rivers.
This alone would seem decisive of the case as matter of law, but
a peculiarity of fact is equally decisive. Just above the pro-
posed structure, is a dam and a low bridge with one narrow draw
— just below, are two bridges of less elevation than the one pro-
posed, with much narrower spans, and one of them with no wider
draw.

At this point of the argument the questions are, first, of power
in the State to charter a bridge, and second of the legal conse-
quences of this particular charter — the question of the wisdom of
a multiplicity of bridges, is not here, and cannot be brought into
a judicial forum. Keeping then to the point, namely the valid-
ity and legal effect of the charter, is it not a daring feat of
logic to argue that a broad gateway, approachable only by nar-
rower ones, is unlawful and a nuisance, stopping ingress and
egress? Every floating thing which can pass existing structures,
can readily pass the new one proposed ; and yet the Court is
asked to hold, not in the abstract, but upon a view of all the
facts, that a navigation now free, will be destroyed or obstructed !
If the complainant's argument has yet greater resource, the case
has need of it.

State laws forbid vessels on the Hudson from moving at their
accustomed rate of speed. State laws stop them, and compel
them to take on a pilot. State laws bring them to anchor for
days and weeks at quarantine. State laws confine fishing ves-
sels to certain seasons, and modes of taking fish, and yet the
same federal statute which gives a coasting license, gives a fish-

20

ing license of the same force and effect, and, mutatis mutandis,
in the same words. With all these obstructions existing,
together with the dam, and the bridges standing now, how can
law or reason brand the proposed additional structure as a
nuisance to the coasting trade because it will cause a detention
not exceeding two minutes to each vessel passing its draws, and
no detention at all to vessels passing under its spans?

4. Somewhere in this discussion the Court will expect a
review of the authorities relied on by the defendants, and per-
haps at this point, it will be well to refer to some cases
already cited. No reported case has been found, and it is be-
lieved none can be found, in which the right to bridge a naviga-
ble stream of its own, and at its own unprompted and untram-
meled discretion, has been denied to a State. The Wheeling
Bridge case, in a random sense, might be deemed an exception,
but that the Ohio Eiver, instead of belonging to any one State,
is the boundary of six States, arid drains four others ; and but
for the further fact that the bridge proposed, was lower down
the river than the territory of the State which objected. Did the
Wheeling Bridge case hold that a State, in bridging its rivers,
infringes the coasting act, or the Constitution of the United
States, it would stand absolutely alone, and stand too overruled,
not only by the Court which decided it, but by the judge who
delivered the opinion, and by other judges who concurred. But
the Court in dealing with the Wheeling Bridge, did not decide
or consider, and could not decide any question now before this
Court. Some of the features wherein that case was unlike this,
are the following :

The suit was not brought by the holder of a coasting license,
and therefore the rights of such a party, and the force and
effect of such a license, and of the license act of Congress, were
not involved.

The complainant was the State of Pennsylvania, and she in-
voked, as was her right, in the first instance, all the ample juris-
diction of the Supreme Court, derived as it is in a body from
the Constitution itself, without the aid of statutes. The case
shows that Pennsylvania was not interested in a single licensed
vessel. She sued in right of her public works dependant on
the Ohio, which had cost eighteen million dollars, and on which
fifty million dollars of goods were carried annually. She

21

alleged, and proved, that an obstruction of the Ohio would cut
down her tolls, or arrest their increase. The Ohio is a boundary
river, dividing six States, and nourished by four others.

Virginia had entered into a compact with Kentucky, and
with the United States, that " the use and navigation of the
river Ohio, so far as the territory of the proposed State, or the
territory that shall remain within the limits of the common-
wealth, lies thereon, shall be free and common to the citizens of
the United States." The Court had already held in Green v.
Biddle, 8 Wheaton, 1, that this compact was a "contract," and
that any State law in violation of it, was forbidden by the Con-
stitution of the United States. Thus the obligations of Virginia
touching the Ohi^, were fixed and special. Her Legislature nev-
ertheless, granted a charter to span the river with a bridge in
which no draw was required. Under color of this charter, but
in flagrant violation of it, the grantees erected a suspension
bridge so near the water as to arrest absolutely all steamboats of
the larger class.

The bridge cost $200,000, and the vessels it stopped cost a
million six hundred thousand dollars, and carried one-half of all
the goods and three-fourths of all the passengers between Cin-
cinnati and Pittsburgh.

Upon such facts, the Court held, in short, that " something
must be done," but even on such facts, it did not prostrate the
bridge. On the contrary, time was given the defendants to try
experiments, and at length a draw was put in a section of the
bridge across another channel of the river, which had never be-
fore been frequented, and which would carry vessels out o heir
course. This being accomplished, and a new track thus pro-
vided through a draw, the Court said the law was satisfied, and
free navigation restored ; and soon afterward Congress, to close
the door against further possible complaints against the bridge,
declared it a lawful structure and post-road.

The sequel to this history, is that almost a quarter of a cen-
tury has rolled by, the bridge has stood, driving navigation
round the back way, and yet navigation, and Cincinnati, and
Pittsburgh, and Pennsylvania, all have flourished exceedingly.
Mr. Justice McLean, who delivered the opinion of the Court
against the bridge, had, nine years before, decided a case like
that now at bar in our favor (3 McLean, 225) ; and three years

22

after the Wheeling Bridge case, he again decided a case like this,
as we ask the Court to decide now. (6 McLean, 517.) The Chief-
Justice, dissented in the Wheeling Bridge case, so did Mr. Jus-
tice Daniel. Judge Curtis was then in the Court, and the pages
of 12th Howard attest his judgment in favor of the juris-
diction of States over their rivers. The views of Mr. Justice
Grier were pungently stated by himself in the Passaic Bridge
cases (3 Wallace, 782) five years after the Wheeling Bridge case.

Thus we see how little application, in law and in fact, that
famous litigation has to the question before us, and we see also
that five of the nine judges by whom it was decided, had the
views of the law for which the defendants now contend.

I here take leave of the Wheeling Bridge ca#e, and proceed to
cases more in point, taking them up in the order of time in
which they occurred.

In searching for grounds on which to maintain suits like that
now before the Court, counsel have before referred to the case of
Gibbons v. Ogden, 9 Wheat., 1. The defendants here, invoke the
doctrines of that case, and I will state it. It went to the Su-
preme Court of the United States on appeal from the Court of
Errors of New York.

Ogden filed a bill against Gibbons, setting up an exclusive
right to navigate all the waters of New York with vessels pro-
pelled by fire or steam. A monopoly of steam navigation, had
been granted by the Legislature of the State to Fulton and
Livingston, and Ogden claimed as their assignee. The statute
on which his right depended, declared that no vessel should en-
ter the waters of New York by means of fire or steam, unless
licensed so to do by Fulton or Livingston or their assigns, and
denounced as penalty for violating the act, forfeiture of the of-
fending vessel. The bill set up the statute, and charged that
Gibbons had entered the waters of the State with steam, and
without a license from the complainant. Gibbons answered
that he held a coasting license, and under it had the right to
proceed without any other permission. It appeared in the case
that New Jersey and Connecticut had each retaliated by coun-
ter legislation. New Jersey had enacted pains and penalties
against any one who should oppose her citizens in proceeding
with their steamboats in their ancient channels, or who should
attempt to exact money from them under the statute of New

23

York, and she gave an action in her own courts to enforce her
will. Connecticut, by law, forbade entry to her waters by any
vessel holding a license from the grantees of New York.
The question was whether States could thus banish vessels of
the United States from their respective^ waters, and farm out or
toll, the privilege of entering their jurisdictions. The issue
had nothing to do with the police, or municipal management,
or jurisdiction of a river, physically — it related wholly to the
equality, the franchise, the incorporeal right of way.

In the light of history, it seems strange now, that validity
should have been accorded to State enactments, the obvious ef-
fect and object of which, was to war, not only on every coasting
license, and against the spirit and letter of the act of Congress
authorizing such licenses, but against the plain purpose and
meaning of the Constitution, as proved not only by the text,
but by contemporaneous annals. The courts of New York,
however, maintained the power of the State thus to take tribute
of commerce, by forcing enrolled and licensed vessels, to buy
permission to enter her gates. In the Supreme Court of the
United States, Mr. Webster stated the whole argument against
the position of the State, and he dealt heavy blows against the
theory of the bill in this case. He disclaimed the idea (p. 9.)
that the States could make no regulations affecting commerce,
and insisted only, (I quote his words) "that such power as had
been exercised in this case, did not remain with the States."
He took care to say that he stated his " proposition guardedly."

Farther on, (p. 18.) he concedes the power of States over pilot
laws, quarantine laws, and the like, and compares the power to
enact such laws, with the undisputed right of States to regu-
late ferries and bridges. He treats as heresy (p. 19.) the notion
that Congress "may establish ferries, turnpikes, bridges, etc.,
and provide for alLthis detail of interior legislation," and char-
acterizes such matters as " internal legislation which no one has
heretofore supposed to be within its powers" — (the powers of
Congress.) Again he says, "all these things" (bridges, etc.) are
in their general character, rather regulations of police, than of
commerce in the constitutional understanding of that term."
He illustrates by the river Thames, and by the fact that Parlia-
ment, or the Crown, has power to regulate commerce, but the
City of London enacts health laws, etc., affecting the river, and

24

he adds that the City of London, could hardly grant a mon-
opoly of the navigation of the Thames.

Mr. Oakley, Mr. Emmett and Mr. Wirt, discoursed at much
length on the power of States to grant patents to reward inven-
tors. Mr. Emmett called attention to the fact that the adoption
of the Constitution had never been held to work the repeal of
the pre-existing laws of States touching quarantine, etc. (p. 113.)

The opinion of the Court was delivered by Ch. J. Marshall. It
decided but one point, because the case involved but one; namely
that a State has no right to say that a coasting vessel shall not
go, where an act of Congress says it may go. The reasoning of
the Court, however, (pp. 203, 205) sheds light on the present case,
and states the law as we insist upon it, in respect of the munici-
pal and police power of States, even where its exercise affects com-
merce. Holding that such jurisdiction resides in the States, the
opinion denies that Congress could authorize the erection of a
bridge, unless for National purposes. Thus, the Court not only
declared the power to erect bridges for local -purposes to be in
the States, but in the States exclusively.

One remaining observation of the Court is noteworthy, namely
that Congress has construed the Constitution -so as to leave to the
States, police and municipal jurisdiction over their own waters.
This latter remark is valuable. It is an antidote to the dogma
that the recognition of quarantine laws, and various other State
laws, by Congress, proves nothing in favor of their validity, be-
cause though void in themselves, and deemed so by Congress,
they may nevertheless have been merely tolerated for conveni-
ence. This explanation has been seriously advanced, to break
the force of the position, that State laws, with all the sovereign
attributes of a charter for a bridge, having been held valid by
Congress, the bridge-building power, has thus by necessary
implication been settled, as far as Congress can settle it.

The construction given by Congress to the Constitution touch-
ing the reserved right of States to enact pilot and inspection
laws, and the like, has been more recently emphasized in the
same way by the Supreme Court; (12 How., pp. 318, 319, 321 ;)
and yet, as lately as the Albany Bridge case, an attempt was
made, and may be made here, to explain away the interpretation
placed by Congress on the Constitution in this regard, by the
curious hypothesis that acts of States, which were nothing but

25

sheer usurpations, and so regarded, were actually taken up and
vitalized, by making believe they were laws, as if Congress
could either delegate legislative power to the States, or ratify
void State enactments, as a principle may ratify the acts of an
agent.

The next case to which I ask attention is on all fours with the
case in hand, even as the complainant states it.

Wilson vs. the Black Bird Creek Co., 2 Peters, 245, decided in 1829.

The stream therein question, was in the State of Delaware. It
was tidal, and had from time out of mind been navigated. Un-
der an act of Delaware, a dam was raised across it. Wilson
sailed into the stream with the " Sally," a vessel of ninety -five
tons, " regularly licensed and enrolled" under the laws of the
United States, and, breaking the dam, passed it. The Dam Com-
pany brought trespass, and Wilson pleaded all the complainant
pleads here: coasting license, public highway, tidal and nav-
igable stream, right of free navigation, etc., etc. " The
Dam Company demurred, and the Courts of Delaware sus-
tained the demurrer, and held the State had the power
to dam the stream. The case was carried by writ of error
to the Supreme Court of the United States, and. argued
by Mr. Coxe and Mr. Wirt. Chief- Justice Marshall was again
the organ of the Court, and the decision was delivered five years
after Gibbons vs. Ogden was decided. The Court (pages 250,
251) in broad terms asserts and vindicates the power of Delaware
to do as she had done.

This case, so fatal to- suits like the present, has been
stormed by many counsel, always in the same way, and
always in vain. The effort each time is to belittle it, and
then brush it aside. It is said Black Bird Creek was a little
stream. Mr. Wirt christened it " a reptile stream." — a baptism
afterwards bestowed by Mr. Seward on the Hudson, at Troy. An
English Judge once said " the Court can not measure the size of
people's understandings ;" and it is difficult to see how a Court
can gauge the law in a case like this, by the measurement of a
navigable stream in which the tide ebbs and flows, which from
time immemorial has been navigated as a public highway, and
to which the coasting act of Congress applies exactly as it ap-
plies to any other water.

The title of the complainant here is a coasting license — such

26

was the title of the navigator there. The coasting act provides
for vessels of five tons burthen, the same license as for the mate
of the Great Eastern : and the act and the license operated on
Black Bird Creek in all respects as they operate on the Hudson.

The "Sally" was in fact nearly as large as the canal boat
" Amelia," which ranges so promiscuously and extensively
among " various States." Both held a license, the same even in
letter. What then distinguishes the two cases? Can it be that
a coasting license means one thing in Delaware and another
thing in New York? Can it be that when the upper Hudson
shall have become narrower and more shallow, as inevitably it
must, the State of New York will thereby acquire greater Con-
stitutional power than she possesses now ? Can it be that polit-
ical sovereignty depends on the latitudes, or names, or measure-
ments of tidal navigable streams, or on the tonnage of the vessel
whose owner sues ?

The Black Bird Creek case, deals with a question of power
over the physical condition of navigable waters in a State, and
it decides that power to reside still where the Constitution
found it, in the States. It has been said too, that the object of
the dam was sanitary, not commercial ; that it was built to drain
a marsh as a measure of public health. What of it? The
motive there was the public health; the motive here is the
public interest and convenience. But what has motive to do
with the existence of a power? The question whether sover-
eignty resides in a State, can never depend on the motive of its
exercise.

Next comes the case of The People v. R & S. R R Co, 15
Wend., 113, decided in 1836. The record of this litigation,
with the judgment which ended it, stands not only as a great
authority, but as a monument of learning, somewhat overshad-
owing, if not disparaging, to later efforts in the same field.
The proceeding was by Quo Warranto, to test the right of a rail-
way company to erect the bridge still standing at Troy, to which
reference has repeatedly been made. The defendants pleaded
a statute of New York, authorizing a railroad from Troy to
Ballston Spa., which, as they insisted, and as the Court held,
implied a license to bridge the Hudson. Mr. Stevens, Mr.
Buell, and Mr. Butler, (then Attorney-General of the United
States,) discussed the power of the State to authorize the bridge,

27

and but little more can be found in later records than was said
there, on either side. (Pages 114, 115, 116, 118, 119, 122, 123.)

The opinion delivered by Chief-Justice Savage, explores the
whole subject with remarkable vigor and thoroughness. I read
from pp. 131 to 135. Here we have not the Black Bird Creek r
but the " Arm of the Sea," now before the Court, and at a point
too, only a mile distant from the site we are discussing. The
moving papers tell us that the Hudson, at Troy, was a better
channel then, than it is now ; then it was unvexed by bridge or
pier, and yet the Court said the State might span it at its pleas-
ure with a low bridge, having only a tiny draw. The bridge
was built, and built on a bare implication in a charter, as Mr.
Webster said, the American Ee volution was fought on a pream-
ble.

Next in point of time, was the case of Palmer v. Cayuhoga
Co., 3 McLean, 226, decided in the Circuit Court of Ohio, in
1843. It was an application for injunction to restrain the build-
ing of a draw-bridge over the Cayuhoga Eiver. The ordinance
of 1787 made the river forever free. The argument there was
the argument here, fortified there, however, by the ordinance of
freedom. Mr. Justice McLean refused the injunction, on the
grounds stated by Chief- Justice Savage, in the case just cited.
(See pp. 227, 228.) He says a State may dam or bridge a
stream, provided by lock or draw, and without charge, vessels
are allowed to pass.

Cooley v. Port Wardens, 12 How., 299, was decided in the-
Supreme Court of the United States, in December, 1851. The
case arose on a statute of Pennsylvania imposing pilots of her
own, on all vessels, and inflicting penalties for refusing to accept
and pay them. The question was the power of the State over
its navigable waters, and over vessels traversing them. Mr.
Justice Curtis delivered the opinion of the Court, and the rea-
soning vindicates all we contend for here in principle. (See pp.
318, et. sec.)

The U. S. vs. R R Bridge Co., 6 McLean, 517, was decided
at the Circuit in July, 1855, by Mr. Justice McLean, five years
after his judgment in the Wheeling Bridge case.

The United States applied for an inj unction to prevent the
erection of the Eock Island draw-bridge over both channels of
the Mississippi Eiver, under the authority of Illinois. The case-

28

-was elaborately argued by the Attorney-General, and by Mr.
Reverdy Johnson. The Court denied the injunction, on the
ground that the States have authority, and exclusive authority,
to cause such works. (See pp. 523, 524, 525.) The decision
was acquiesced in, and the bridge was built. Some of the
allegations of danger and difficulty in passing the draw, are
curiously like those found in the moving papers here, and in
disposing of them, the Court says, that the draw being wider
than a narrow near by, it is certain that any boat finding room
at the narrows, will find room at the draw. (Page 538.) This
short decisive answer, applied to the bridges above and below
the bridge now in question, may quiet some of the alarms mani-
fested here.

The cases of the Passaic Bridge, decided by Mr. Justice
-Grier, in the Circuit Court, September 1857, came next. They
are reported, 3 Wallace, 782. Milner and others, citizens of
New York, filed bills to restrain the erection of two railway
bridges over the Passaic R,iver. One of the proposed sites, was in
the City of Newark, and the other, two and a half miles below
the wharves of the city. The railway company had long main-
tained a bridge higher up the river, and the object of the new
bridges " was to shorten and straighten the road." The Passaic,
is a tidal stream, and navigable some distance above Newark,
and had in fact been navigated from time, immemorial. Newark
had been made a port of entry by act of Congress, and the
United States had surveyed the river, and built light-houses, fog-
lights, spar-buoys, etc., upon it. New Jersey had authorized
bridges over it before, but their sites were all higher up the
river. The proposed bridges were authorized by New Jersey,
and required to have draws of sixty -five feet. Wharf owners
and captains in "large numbers," swore to "their opinion that
the bridges could not be erected, (this is the language of the
report,) without obstructing the navigation by the detention of
ice, and by causing bars, and shoals in the river, and without
subjecting sailing vessels especially to a detention for a change
of tide and wind, and for daylight, and to inconveniences and
hazards generally, while it would probably subject wharf prop-
erty, above the bridges, to a depreciation of 20 to 50 per cent,
break up a system of tow boats that had got established in that
river, and raise the price of freights." The resemblance be-

29

tween these dismal recitals, and those of the moving papers-
here, is such as to almost suggest a suspicion of plagiarism by
a Jersey complainant.

In support of the motion, the authority chiefly relied on r
after the Wheeling Bridge case, was the case of Devoe v.
Penrose Ferry Co., in which Mr. Justice Grier had then recently
granted an injunction in the first instance, and in which he
seemed to feel constrained by the Wheeling Bridge case. The
judge dismissed the bills, and in so doing, delivered a careful
and pregnant opinion, in which, among other things, he holds :

1st. That prescribing bridges, and determining the height of
piers, and width of draws, is not a judicial, but a legislative
function, (p. 789.)

2d. That the police of the streams of a State, though they
be tidal, and though ports of entry have been established on
them, belongs to the State, and not to Congress or the Courts;
this he affirms historically and legally, (pp. 789, 790.)

3d. That the Circuit Court of the United States affords no
remedy, and possesses no power in such cases, other than those
of the Courts of the State. At this point, the judge (pp. 789,
790,) pays a passing tribute to the practice of importing com-
plainants from other States to give entrance to the National
Courts in such cases.

4th. That the existence of a port of entry, does not change
the law of the case. (p. 791.)

5th. That the power of Congress to regulate commerce does
not " include the means by which commerce is carried on within a
State." (p. 792.) He says: " Canals, turnpikes, bridges and rail-
roads are as necessary to the commerce between and through the
several States, as rivers, yet Congress has never pretended to regulate
them. When a city is made a port of entry, Congress does not there-
by assume to regulate its harbor, or detract from the sovereign rights
before exercised by each State over her own public rivers."

Again he says : " Congress by conferring the privilege of a port of
entry upon a town or city, does not come in conflict with the police
'power of a State exercised in bridging her own rivers below such
port. If the power to maize a town a port of entry, includes the right
to regulate the means by which its commerce is carried on, why does
it not extend to its turnpikes, railroads and canals — to land as welt
as water? Assuming the right {which I neither affirm or deny) of

30

"Congress to regulate bridges over navigable rivers below ports of en try ,
yet not having done so, the Courts cannot assume to themselves such a
power. It is possible the Courts may exercise this discretionary
power as judiciously as a legislative body, yet the praise of being l a
good judge ' could hardly be given to one ivho would endeavor to l en-
large Ms jurisdiction ' by the assumption, or rather usurpation, of
such an undefined and discretionary power.

The police power to make bridges over its public rivers, is asabso-
lutely and exclusively vested in a State, as the commercial power is in
Congress ; and no question can arise as to which is bound to give
way ivhen exercised over the same subject matter, till a case of actual
collision occurs. This is all that was decided in the case of Wilson
vs. the Blackbird Creek Co. (2 Peters, 257.) That case has been
the subject of much comment, and some misconstruction. It was
never intended as a retraction or . modification of anything decided in
Gibbons vs. Ogden, or to the exclusive power of Congress to regulate
commerce. Nor does. the Wheeling Bridge case at all conflict with
either. The case of Wilson vs. the Black Bird Creek Co. governs this,
ivhile it has nothing in common with that of the Wheeling Bridge.' 1 ' 1
(Pages 793, 794.)

The decree of dismissal was afterwards affirmed in the
Supreme Court, by a division of the bench. (3 Wall., 720.)

By way of commentary on the observations of Judge Grrier,
I ask what distinction can be found between the power of Con-
gress to regulate commerce on rivers, and commerce on railroads
or canals ? Congress may regulate the management of traffic
on railroads, as it has lately done, in respect of starving and
bruising cattle by long confinement in cars without food or
water ; but may Congress regulate the gauge, grade, alignment,
and structures, of the railways of States ?

Again, even supposing such a power to belong to Congress,
may the Courts, in the absence of any action by Congress, regu-
late and adjudge such matters? Customs duties, are collected
of commerce by rail and canal, exactly as of commerce by river
or sea, but will it be said that Congress, and that the Courts
without an act of Congress, may, and that the States may not,
determine the location of tracks and locks, and their character,
and dimensions? Certainly such powers, if exercised at all,
must be for National purposes ; and even for National purposes,
it has not yet been held, though repeatedly urged upon Con-

31

gress. that a railway through States may be chartered by
National authority. Assuming, however, that such works may
be planted in States for National purposes, by what reasoning
can it be insisted that structures entirely local in object and use,
can be authorized by the United States? If local improve-
ments are beyond the domain of Congress, and the States are
bereft of their jurisdiction, the power to build a bridge resides
nowhere.

The tread of man, has been ever on lines of latitude, rather
than on lines of longitude. This is the fiat of Nature's laws.
The geography of America, directs the destiny of population
and enterprise, eastward and westward in an orbit belting the
globe with industries and commerce.

The rivers of America, flow north and south : and it would
be pitiable indeed, if a civilization, which, in its impetuous
career, tunnels and levels mountains, ploughs through cities, and
flings down and tramples out the habitations of the living, and
the sepulchers of the dead, could be baffled by a sacred and im-
passable barrier, wherever a licensed canal boat wallows in the
coasting trade. The history of every river, and the policy and
jurisprudence of every State, laugh, at such a theory. Man
shrinks from crossing isothermal lines, and the products of the
earth will not endure different zones and climes ; the breadstuffs
of the west, perish in the tropics, and wheat and corn from
northern prairies will not bear transportation through the delta
of the Mississippi and the Gulf of Mexico.

Thus, tracks across the Continent, on which travel and traffic
may sweep from sea to sea, stayed by no obstacle which science
can surmount, are as inevitable as the decrees of fate.

Next in time to the Passaic Bridge cases, is the case of the
Albany Bridge. (4 Blatch., 74, 395.) The final hearing was in
October, 1859. The similarity, or rather identity, between that
case and this, is somewhat curious. The river was the same,
the locality the same, the kind of structure the same, the coun-
sel for the complainants the same, and finally the complainant
the same in name and family. Even the last of these features,
has perhaps as much legal efficacy, as the distinctions sometimes
relied upon to depreciate the authority of the case of the Black
Bird Creek. Mr. Justice Nelson, at Chambers, granted a prelim-
inary injunction, assigning as a governing reason for doing so,

32

that no outlay having yet been made, the interests of the defend-
ants would be consulted by postponing the commencement of
the work till their rights were adjudged. He remarked also
that no objection to the j urisdiction had been raised, and there-
fore, for the purpose of the interlocutory motion, he would assume
jurisdiction, without, however, thereby committing himself upon
the point. At the final hearing, the cause was most learnedly
and fully argued, by Mr. Beach and Mr. Eeverdy Johnson, for
the complainants, and by Mr. Hill, Mr. Seward, and Mr. Eey-
nolds, for the defendants. The Court divided. Mr. Justice
Nelson gave no opinion : his views previously expressed on the
motion, appear in 4 Blatch., 74. Mr. Justice Hall delivered an
elaborate opinion against the bills, denying the jurisdiction of
the Court, reviewing the authorities, and discussing the case at
large. (4 Blatch., 395.) Few treatises on the subject, are more
worthy of study. The certificate of division, stated, as the first
point of difference, the jurisdiction of the Court, even assuming
the bill to be proved in all its arts. Upon this question being
presented to the Supreme Court, in December, 1861, the Court
was equally divided. (1 Black., 582.) A decree was then
made in the Circuit Court, dismissing the bill ; from this decree
the complainants appealed to the Supreme Court, and there the
decree was affirmed by a divided Court, in December, 1864.
(2 Wall., 403.)

Thus the judgment of the Supreme Court stands, concluding
this case, as we insist. A second bridge followed the first, with-
out challenge. The judgment in the Supreme Court in the
case is, we hold, obligatory upon this Court as authority and
precedent, irrespective of the fact that it was not pronounced by
a majority of the Court. This has been held in other cases, and
accepted as the law by other Circuit Courts, when held too by
Justices of the Supreme Court. (Oilman v. Philadelphia, 3
Wall., 721.) The English courts, and our own, have accepted
the binding authority of judgments resulting from divisions of
the bench.

The Queen v. Millis, 10 Clark & Finnelly, appeal cases, 534,
is a case of final judgment in the House of Lords, resulting
from an equal division. Millis was indicted for bigamy. It was
proved that he was married to Hester Graham, in Ireland, by a
a Presbyterian minister, and that afterwards he married another

33

person in a parish, church in England. The jury found a special
verdict according to the facts above stated. The indictment and
special verdict, were afterwards removed by certiorari into the
Court of Queen's Bench in Ireland, and the case there argued.
The judges delivered their judgments seriatim. They were
equally divided. Afterwards, for the purpose of obtaining the
judgment of the House of Lords, one of the judges, in form,
withdrew his judgment, and thereupon the Court adjuged that
Millis was not guilty. A writ of error was then brought, and
the case argued in the House of Lords. In that body, sitting as
a court of law, three members constitute a quorum, and the
number participating in the case was four. The following is
the entry, in the journal, of the final proceedings :

"It was ordered and adjudged by the House of Lords that
the judgment given in the Court of Queen's Bench be and the
same is hereby affirmed, and that the record be remitted to
the end that such proceedings may be had thereupon, as if no
such writ of error had been brought into this House." (Lords'
Journal, March 29, 1844.)

In the " minutes of proceedings, on the same day," the entry is
more full. It is as follows : " Eegina v. Millis. (Writ of error.)
The order of the day being read, for the further consideration of
the case, the House proceeded to take the same into considera-
tion, and it being moved to reverse the judgment complained
of, the same was objected to, and the question was put whether
the judgment complained of should be reversed? The Lords
Cottenham and Campbell were appointed to tell the number of
votes, and upon report thereof to the House it appeared that
the votes were equal, that is, two for reversing and two for af-
firming. Whereupon, according to the ancient rule of the
law, semper prcesumatur pro negante, it was determined in the
negative. Therefore the judgment of the Court below was af-
firmed, and the record remitted."

This final judgment, thus arrived at, was held to bind inferior
tribunals in after cases, the same as if a united Court had pro-
nounced it.

In Catherwood vs. Caslon, 13 Meeson & Welsby, 261, the Court

of Exchequer held itself bound by the case of the Queen vs.

Millis. Parke B. delivering the judgment of the Court, says :

" Since the original argument, it has been decided by the House

c

34

of Lords in the case of the Queen vs. Mill is, that unless in the
presence of such a minister, such a contract does not constitute a
valid k marriage at the common law in this country ; and by that
case we are bound."

The case of Krebs v. The Carlisle Bank, was decided in the
Supreme Court of the United States, by an equally divided
Court. The effect of this decision, was subsequently considered
in connection with the case of McDermond v. Kennedy, in the
Supreme Court of Pennsylvania, and Chief- Justice Gibson spoke
of it as "an authority in point." This view of the effect of a
decree resulting from division, is considered and approved in a
note to the case of Krebs v. Carlisle Bank, 2 Wallace, Junior,
pp. 49 to 51.

Without authority, reason shows us that the decree of the
Supreme Court in the Albany Bridge case, cannot be nugatory,
because of the process by which the Court reached the result.
Why did the decree bind the parties to it ? Only because it
was the decree of the Court. Did it not for the same reason
bind every body who could be bound by a decree in the case ?
Did it not bind inferior Courts? Could the Circuit have properly
disregarded it as authority, had the same complainant, or an-
other, instituted a fresh suit afterward to challenge the validity
of the bridge charter?

Could this Court fitly entertain jurisdiction now of a bill
praying that the Albany Bridge charter be decreed null, and that
the bridge be prostrated ? Even entertaining such a bill, would
the Court hold the question of its jurisdiction, and of the right
of the State to grant the charter, still an open and original ques-
tion ? If not, why not ? If the complainant were not a party or
privy to the former suit, no principle of estoppel could bar him
— then why would he not stand on an equal footing with the
complainant now before the Court? The fact that the structure
is the same, could not affect the case, but to divest the illustra-
tion of all identification of fact with the old suit, suppose the
second and more recent bridge at Albany were thus assailed,
would the Court hold that a bill, levelled at that bridge, might
present itself, and bring with it all its claims of jurisdictional
merit, the same as if the Supreme Court had never, although by
division, decreed adversely in the case of the first bridge, and
also in the case of the Passaic Bridge ? This tests the question,,
and this test alone, is, I insist, fatal to this motion,

85

We are farther and fully fortified at this point, by the fact
that the principles established by a division of the Supreme
Court, in the Albany Bridge case, have since received the posi-
tive approval of a majority of the Supreme Court.

In December, 1865, Gilman v. Philadelphia, (3 Wall, 713,)
was decided, with the concurrence of five members of the Court,
Mr. Justice Nelson being absent. Grilman, a citizen of New
Hampshire, filed a bill to restrain the erection of a bridge over
the Schuylkill Kiver. He was not the holder of a coasting
license, but a wharf owner, the decision, however, in no degree
turned upon the nature of his interest ; the case was treated as
having all the merit a coasting license could impart. (See pp.
722, 725, 729.) The Schuylkill is tidal above the City of Phila-
delphia, and navigable by vessels drawing eighteen or twenty
feet of water ; the coal trade upon it, is large, employing many
licensed vessels owned in different States, and millions are in-
vested in the wharves to which these vessels ply. It is an
ancient highway of navigation, and the Court treated it as a
stream having all the constitutional and legal attributes of any
river flowing within a State, and covered by the coasting act.

The Legislature of Pennsylvania, in 1857, authorized Phila-
delphia to erect a bridge without a draw, at Chestnut Street, and
within 500 feet of another bridge already standing. It was ad-
mitted by the defendant that the bridge was to be not more than
thirty feet high, a pier was indispensable, and the navigation at
that point required a wide channel, (p. 720.) Vessels with
masts could not pass, and it was not disputed that navigation
would be sensibly obstructed. Mr. Justice Grrier dismissed the
bill in the Circuit, without argument, holding himself bound by
the decision resulting from a division of the Supreme Court in
the Passaic cases, (p. 720.) The case was carried to the Supreme
Court, and there decided in December, 1865. Mr. Justice
Swaine delivered the opinion of the Court, (p. 721.)

The Court among other things says : (p. 725.) " The power to
authorize the building of bridges, is not to be found in the federal Con-
stitution. It has not been taken from the States. It must reside
somewhere. They had it before the Constitution was adopted, and
they have it still" (p. 725, see also, p. 730.) The decree of the
Circuit Court was affirmed. Here we have the judgment of a
majority of the Supreme Court sustaining all we contend for in
the present case, and something more.

36

But the Court is again recorded in the same way, in the case
of Orandall v. Nevada, (6 Wall., 35,) decided in Dec, 1867.
The State of Nevada had imposed a tax on railroad and stage
companies for every passenger carried out of her limits, and the
question was upon this statute. The case depended in part up-
on the power of States touching commerce. The Court (per.
Miller Justice, p. 42.) reaffirms the case of Gilman v. Philadel-
phia, and the doctrines it lays down. The opinion says:

"In the case of Cooley v. Board of Wardens, four years
later, the same question came directly before the Court in refer-
ence to the local laws of the port of Philadelphia concerning
pilots. It was claimed that they constituted a regulation of
commerce, and were therefore void. The Court held that they
did come within the meaning of the term 'to regulate com-
merce/ but that until Congress made regulations concerning
pilots, the States were competent to do so.

" Perhaps no more satisfactory solution has ever been given of
this vexed question, than the one furnished by the Court in that
case. After showing that there are some powers granted to
Congress which are exclusive of similar powers in the States be-
cause they are declared to be so, and that other powers are
necessarily so from their very nature, the Court proceeds to say,
that the authority to regulate commerce with foreign nations and
among the States, includes within its compass powers which can
only be exercised by Congress, as well as powers which from
their nature, can best be exercised by the State legislatures ; to
which latter class the regulation of pilots belongs. { Whatever
subjects of this power are in their nature national, or admit of
one uniform system or plan of regulation, may justly be said to
be of such a nature as to require exclusive legislation by Con-
gress.' In the case of Gilman v. Philadelphia, this doctrine is
reaffirmed, and under it a bridge across a stream navigable from
the ocean, authorized by State law, was held to be well author-
ized in the absence of any legislation by Congress affecting the
matter."

Through all these cases runs in an unbroken current, a prin-
ciple, which, correctly applied, will solve every problem of
State and federal jurisdiction, relating to the commercial clause
of the Constitution.

Legislation, the nature and object of which require it to be
uniform and universal in its operation throughout the Union,
pertains to Congress.

Legislation, the nature and object of which require it to be
special and exceptional, and confined and adapted to particular
localities and individual cases, pertains to the States.

37

This solution dispenses with technical and minute distinctions
between "commercial regulations " and " police regulations: " —
it strikes through words at things, and draws strong and practi-
cal lines of demarkation between the affairs of the Nation, and
the affairs of the States. It preserves also the true theory of all
self-government, and of our government especially, by commit-
ting to each community its own business. This is its effect in
legislation ; in judicial proceedings, its mandate is still more
imperative and obvious. Whether Congress be or be not re-
stricted by such a rule, certain it is that the rule has not yet
been transcended by National legislation, and until it shall be so
transcended, Courts are bound to observe it.

5. Did the complainant's allegations of fact, tend in any de-
gree to invest the present case with exceptional merit, I could
not, after consuming so much time, ask to be heard long upon
that branch of the case. It is not likely ever to be reached by
the Court, and all the substantial allegations are overthrown by
the answer and the answering affidavits. A few remarks will
indicate sufficient reasons for regarding the proposed bridge as
one exceptionally harmless. The most labored parts of the
moving affidavits, consist of "opinions," that piers will change
the bed and channel of the river, by causing shoals, bars, etc.

Such speculations were more or less potent once, but they are
worthless now, and out of date. Science and experience have
learned to avoid and remedy all such effects. This is true in
general, as the affidavits of eminent engineers inform us, and as
the Court knows as part of the public history of our times.

Piers tend to scouring out the bottom as the affidavits say, to
such an extent that rip raps around them are customary to
shield them against undermining water* This truth is so notori-
ous, that in December, 1872, Congress forbade the use of rip
raps in bridging the Ohio.

In the case before us, we have much sworn testimony that no
harm or injurious change will come to the bottom or current of
the river, from the presence of sharp and exactly adjusted piers.
But there are two mute and unsworn witnesses, who testify more
unanswerably and instructively than all others. I mean the two
bridges, standing with their piers on the same bed, and in the
same current, just below. Year after year, these piers have
worked out the problem of their influence on the action of the

38

water at every season. The bottom there and at the proposed
site, are proved to be of the same material. Ice and freshets,
have beat upon these structures, and worked on the river bed,
and the piers have proved as guiltless of wrong to the river, as of
injury to commerce. Their innocence in both respects, appears in
one fact which can never be sworn down or answered, and that
is the tariff of freights. Freights on merchandise carried by ves-
sels passing these bridges, are no higher since the bridges, than
before. Witnesses may differ in opinion, and even in the evi-
dence of their own senses ; they may assert and deny that bars
and shoals will be or have been ; but to learn the effect of the
bridges on navigation, past mistake, the fact must be weighed in
golden scales. If in truth, navigation had been made hard or
hazardous by these bridges, the price of freights would say so,
as quickly and as surely as the needle tells us of the pole. A
ponderous telegraph cable looped down to the river's bed, may
nurse a passing sandbar, or scrape a deep ploughing keel ; but
the practical facility with which vessels move, measures the cost
of river transportation, and transportation makes no mistakes
against itself.

In view of the experience at Albany, it is natural that vessel
owners, wharf owners, and navigators, combine with the whole
community at Troy and West Troy, save only the owners of
the one boat ferry, in favor of the bridge, now proposed, as the
affidavits abundantly prove they do.

A pretended exhibit is made, imposing in proportions, of the
vessels registered at Troy, which will be subjected to passing the
proposed draws.

The analysis made of the truth in this respect, in the answer-
ing affidavits, by the vessel owners themselves, compels the be-
lief that the complainant's case in one respect at least is sheer
exaggeration. In the absence of the facts, the Court could
hardly have believed the need of a draw, so limited as it turns
out to be, or that those who are to use it, are so united in its
favor.

The allegation that passenger boats cannot turn from the
present landing so conveniently with the bridge, as without it,
even if it were true, and the complainant entitled to champion
their interest, is of no importance. The answer to it is, that in
Troy, as in Albany and elsewhere, the steamboat landing can

39

easily be changed to the foot of another street. That there are
ample landing places for passengers, even more eligible than the
place now used, is abundantly proved by the affidavits.

The allegation that barges with spars can pass only by the
draws, even if it were material, is answered by the fact that
spars on barges are used only as dericks, and, even for this pur-
pose, are virtually obsolete.

The anticipated awkwardness in high water, of moving
" tows " to and from the side cut across the river, rests wholly
in conjecture ; it is fully denied, and even if the Legislature
had not fixed the site of the bridge, and the allegation were
proved, it could not effect this motion or the final decision of
the case. The only adequate dispensation for this kind of navi-
gation, is an act of Congress enrolling and licensing "tows," and
authorizing them to "swing around" and spread themselves
wherever grass grows or water runs.

I leave the complainant's allegations of fact, with one remark.
Those who have traversed the interminable proofs in the Albany
Bridge case, and caught glimpses of the terrific visions of im-
pending ruin and desolation, which frightened the Court and
unmanned Troy, and who know also how grimly ludicrous time
has made these delusions, must smile at the mimic the attempt
made now, to conjure up such spurious and musty apparitions.

THIRD.

But one point remains to be referred to, a point which, could
it have received the judgment of the Court before proceeding
further, would have been presented in front of the case.

The delay of the complainant, in asking for an injunction, is of
itself, a full answer to this motion. Whoever, with knowledge
of the facts, allows another to incur burdensome obligations and
make large expenditures, which an injunction, asked for in ses-
sion, would have prevented, forfeits his right to such a remedy,
and the want of equity in this motion, is in the proportion in
which the defendants will be damnified by granting it.

Hilliard on Injunctions, p. 24, § 43. Tash vs. Adams, 10 Cush., 252.
Grey vs. Ohio & Pa. RR. Co. 1 Grant's cases, 412. Binney's case, 2
Bland. Ch. R's. 99. Real Del. Mining Co. vs. Pond, &c, 23 Cal. 82.
Story's Eq. Jurisprudence, § 959, A.

40

The fact that the complainant filed his bill in October, 1872,
is no answer to this objection — he was guilty of laches there
also, but had the suit been seasonable it would not cure the de-
lay in asking for a provisional injunction.

At this point I beg the Court to scrutinize section seven of
the charter, found on page 10 of the bill. It will there be seen
that the complainant was entitled to no delay whatever in ob-
jecting to the work. Everything complained of, even the loca-
tion of the west pier in reference to the canal, is set down in the
statute ; and preceding sections, fix the times of all preliminary
proceedings.

The final issue, the defendants were and are ready to meet —
they had a right to go on, and were bound to go on with their
work, and abide the result in the end. They had a right to
hasten the completion of the bridge, for the very purpose of re-
futing by actual demonstration, the charges in the bill. Their
diligence shows good faith in their undertaking, and also in
their answer : it was therefore meritorious and favored of the law.

Again, the defendants had a right to assume that the com-
plainant would attempt more promptly, if at all, to tie their
hands. All this would be true in any case.

But in this case, there is a special and controlling fact : in this
case, silence was double acquiescence. The statute creating
the Bridge Company, compelled it to go on, suit or no suit, un-
less actually ordered by the Court to desist. (See section 7.)
This fact clinches the laches of the complainant, and stops him
here on the threshold. Having, with full knowledge, lain by,
fourteen months, he is barred when he comes now with affidavits
six months old, and seeks on conjecture to inflict grievous in-
jury on the defendants, by arresting costly works now nearly
completed, which having himself encouraged, he at last attempts
prematurely to slander and destroy.

Were all the law as argued for the complainant, and were all
the facts and merits as he represents them, still, at this late hour,
equity would say, "you are too late for preliminaries now, you
have passed that stage of the proceedings — you have waited un-
til the defendants have gained, at large cost, the right to demon-
strate exactly and certainly by actual trial of their bridge, the
truth or falsity of your predictions, and both sides must abide
for a brief space, the sure arbitrament of time."